Tuesday, May 25, 2010

Do you know? Discovery of social networks in employment disputes

I’ve long preached that employees should not enjoy an expectation of privacy in information they voluntarily place on the Internet, including social networks like Facebook. What they make available for the others to see should be fair game for employers to use in making employment decisions. According to one federal court in Indiana, it is also fair game for employers to use this information in defending against discrimination lawsuits. Because there are so few cases discussing this developing issues of the discoverability of social networking information, this case is helpful in defining the scope of these issues.

EEOC v. Simply Storage Management (S.D. Ind. 5/11/10) concerns two employees’ sexual harassment claims, and in particular their claims of depression, stress, and other psychiatric disorders stemming from the harassment. In discovery, Simply Storage sought the following information from the claimants’ social networking pages on Facebook and MySpace:

All photographs or videos posted by the claimants or anyone on their behalf on Facebook or MySpace.

Electronic copies of the claimants’ complete profiles on Facebook and MySpace (including all updates, changes, or modifications to their profiles) and all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments, and applications (including, but not limited to, “How well do you know me” and the “Naughty Application”).

The EEOC objected to the discovery on the grounds that the requests were not relevant, improperly infringed on the claimants’ privacy, and would harass and embarrass the claimants. Simply Storage claimed that discovery of these matters was proper because the claimants put their emotional health at issue beyond that typically encountered with “garden variety emotional distress claims.”

The court agreed with the employer and ordered the discovery. In doing so, it made four key observations about the discovery of social networking in discrimination cases.

Social networking content is not shielded from discovery merely because it is “locked” or protected as “private”.

However, all social networking content is not necessarily relevant or discoverable in all cases; the information must still be relevant to a claim or defense in the case. The court used the following example to illustrate this difference: “If a claimant sent a message to a friend saying she always looks forward to going to work, the person to whom she sent the message and the substance of the message are what should be considered to determine whether the message is relevant…. But the mere fact that the claimant has made a communication is not relevant because it is not probative of a claim or defense in this litigation.”

Allegations of depression, stress disorders, and similar injuries will manifest themselves in some social networking content. An examination of that content might reveal whether and when onset occurred, the degree of distress, and other stressors that could have produced the alleged emotional distress.

Because discovery is meant to be liberal, the producing party should err in favor of production if there is any doubt over the arguable relevance of social networking information.

The court also specifically addressed the employees’ privacy concerns:

The court agrees with the EEOC that broad discovery of the claimants’ SNS could reveal private information that may embarrass them. Other courts have observed, however, that this is the inevitable result of alleging these sorts of injuries. Further, the court finds that this concern is outweighed by the fact that the production here would be of information that the claimants have already shared with at least one other person through private messages or a larger number of people through postings. As one judge observed, “Facebook is not used as a means by which account holders carry on monologues with themselves.”

In other words, if it is fit to share with your Facebook friends, it is fit to be disclosed in discovery (as long as it’s relevant). As these issues become more prevalent in litigation, these guideposts will become more fleshed out. In the meantime, consider including requests for social networking information in all employment disputes.

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